Tom Barrs v. Desert Ranch Homeowner’s Association

Posted on December 26, 2018 by [email protected]

Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID	18F-H1818035-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2018-12-26
Administrative Law Judge	Tammy L. Eigenheer
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Tom Barrs	Counsel	—
Respondent	Desert Ranch Homeowners' Association	Counsel	—

Alleged Violations

Bylaw 2.4

Outcome Summary

In the initial decision, Petitioner established violations of A.R.S. § 33-1812(A)(7) (election materials disposal) and A.R.S. § 33-1804 (closed/improperly noticed meetings), but failed to establish a violation of Bylaw 2.4 (Issue 1). The rehearing only addressed Issue 1, which was ultimately dismissed.

Why this result: Petitioner lost Issue 1 (Bylaw 2.4 violation) because the ALJ found that while the Bylaw applied to Members, Petitioner failed to show it prohibited a Director from raising concerns about election validity after the meeting adjourned, and the investigation was initiated by a Board member immediately following the meeting.

Key Issues & Findings

Violation of Bylaw 2.4 (Election Objection Waiver)

Whether Respondent violated Bylaw 2.4 when it acted on an objection to the election results raised the day after the Annual Meeting, given that the Bylaw requires members to object to irregularities 'at the meeting' to avoid waiver.

Orders: The Petition was dismissed as to Issue 1.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA Dispute, Election Challenge, Bylaw Violation, Meeting Notice, Record Retention, Rehearing

Additional Citations:

A.R.S. § 33-1813
A.R.S. § 33-1811
A.R.S. § 33-1812
A.R.S. § 33-1804
Bylaw 3.3
Bylaw 2.4

Video Overview

Audio Overview

Decision Documents

18F-H1818035-REL-RHG Decision – 678304.pdf

Uploaded 2026-01-23T17:23:44 (117.5 KB)

18F-H1818035-REL-RHG Decision – 678305.pdf

Uploaded 2026-01-23T17:23:47 (38.8 KB)

18F-H1818035-REL-RHG Decision – ../18F-H1818035-REL/655766.pdf

Uploaded 2026-01-23T17:23:50 (113.2 KB)

Briefing Doc – 18F-H1818035-REL-RHG

Briefing Document: Tom Barrs vs. Desert Ranch HOA

Executive Summary

This document synthesizes the findings and rulings from an administrative legal dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent) concerning the HOA’s board election of March 18, 2017. The core of the dispute involved the HOA board’s decision to investigate and ultimately overturn the initially announced election results, leading to a run-off election.

The Administrative Law Judge (ALJ) overseeing the case and a subsequent rehearing issued a mixed final decision. The Petitioner, Mr. Barrs, successfully proved that the Desert Ranch HOA committed two statutory violations:

1. Destruction of Election Materials: The HOA violated Arizona statute A.R.S. § 33-1812(A)(7) by destroying ballot envelopes shortly after the election, materials which are required to be retained for at least one year.

2. Improper Closed Meeting: The HOA violated Arizona statute A.R.S. § 33-1804 by holding a board meeting with its attorney at a private residence without providing the required notice to its members.

However, the Petitioner’s primary challenge—that the board violated its own Bylaw 2.4 by acting on an objection raised after the annual meeting had adjourned—was dismissed. The ALJ ruled that the bylaw’s waiver of claims applied to general “Members” but not to “Directors” acting in their official capacity. This ruling effectively upheld the board’s authority to investigate the election, which led to the discovery of invalid ballots and the eventual run-off election won by Brian Schoeffler.

As the prevailing party on two of the three issues, Mr. Barrs was awarded a reimbursement of his $1,000.00 filing fee. The judge, however, found that no civil penalty against the HOA was appropriate.

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I. Case Overview

• Parties:

◦ Petitioner: Tom Barrs

◦ Respondent: Desert Ranch HOA, represented by Catherine Overby (President) and Brian Schoeffler (Vice President)

• Case Number: 18F-H1818035-REL

• Adjudicating Body: Arizona Office of Administrative Hearings

• Presiding Judge: Administrative Law Judge Tammy L. Eigenheer

• Subject of Dispute: Alleged violations of Arizona statutes and HOA bylaws related to the handling and outcome of the March 18, 2017, annual board election.

II. Chronology of the Contested Election

The dispute originated from the following sequence of events surrounding the 2017 election for two vacant seats on the Desert Ranch HOA Board of Directors.

1. Pre-Election: Absentee ballots were distributed to members, listing Catherine Overby and Brian Schoeffler as candidates and providing a space for a write-in candidate.

2. March 18, 2017 (Annual Meeting): Ballots were submitted and counted. Catherine Overby and Jerome Klinger (a write-in) were announced as the winning candidates. No members present objected to the results before the meeting was adjourned.

3. Immediately Following the Meeting: Board member Patrick Rice gathered the ballots and “expressed his concerns with the election results.”

4. Circa March 18, 2017: All ballot envelopes from the election were destroyed.

5. March 19, 2017: Candidate Brian Schoeffler sent an email regarding the election, stating, “I’m asking you to review the situation and make a decision if there is enough concern that there should be a revote.”

6. March 20, 2017: Board President Catherine Overby emailed the members, announcing that the election had been “contested.” In the email, she asserted that the bylaws did not permit write-in candidates and declared that she and Mr. Schoeffler were the new directors.

7. March 29, 2017: Certain board members, including Ms. Overby and Mr. Rice, held an unannounced meeting with an attorney at Ms. Overby’s home. During this meeting, it was discovered that “duplicate ballots and a proxy ballot” had been improperly counted.

8. Post-March 29, 2017: After consulting the attorney, the board determined that the valid vote count resulted in a tie between Mr. Schoeffler and Mr. Klinger. The board decided to hold a run-off election.

9. April 29, 2017: The run-off election was held, and Brian Schoeffler was announced as the winner.

10. May 10, 2017: The newly constituted Board of Directors held its organizational meeting.

III. Adjudicated Issues and Rulings

The petition, originally filed as a single issue, was converted to a multiple-issue case. At the hearing, the dispute was clarified into three distinct issues, each with a specific ruling from the ALJ.

Petitioner’s Allegation

Legal Basis

Final Ruling

The HOA improperly overturned the election results based on an objection raised after the annual meeting had adjourned.

Bylaw 2.4

Dismissed

The HOA unlawfully discarded ballot envelopes and related election materials.

A.R.S. § 33-1812(A)(7)

Violation Found

The HOA held closed board meetings without providing proper notice to the membership.

A.R.S. § 33-1804

Violation Found

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A. Issue 1: Violation of Bylaw 2.4 (Improperly Overturning Election)

• Petitioner’s Argument: Mr. Barrs contended that the board was barred from investigating or acting on any concerns about the election after the meeting had concluded. His argument was based on Bylaw 2.4, which states:

• ALJ Finding: The petition on this issue was dismissed. The judge’s finding was affirmed after a rehearing requested by the Petitioner.

• ALJ Rationale:

1. Initiation of Investigation: Testimony established that Board member Patrick Rice expressed concerns “immediately after the Annual Meeting adjourned.” Therefore, Mr. Schoeffler’s email the following day did not initiate the board’s investigation.

2. Distinction Between “Member” and “Director”: The judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific and non-interchangeable meanings. The waiver in Bylaw 2.4 applies specifically to a “Member,” and the Petitioner failed to prove that a “Director” was prohibited from raising questions about the validity of an election after a meeting.

B. Issue 2: Violation of A.R.S. § 33-1812(A)(7) (Destruction of Election Materials)

• Statutory Requirement: Arizona law mandates that “Ballots, envelopes and related materials… shall be retained… for at least one year after completion of the election.”

• Respondent’s Action: The HOA destroyed the ballot envelopes at or around the time of the election.

• ALJ Finding: The Petitioner established that the HOA violated the statute.

• ALJ Rationale: The ruling was based on “uncontroverted evidence” presented at the hearing that established the destruction of the materials.

C. Issue 3: Violation of A.R.S. § 33-1804 (Improper Closed Meetings)

• Statutory Requirement: Arizona law requires all HOA board meetings to be open to all members. A meeting can only be closed for specific reasons, such as receiving legal advice, and the board must provide notice and cite the legal authority for entering a closed session.

• Respondent’s Action: Certain board members met with an attorney at a private residence on March 29, 2017, to discuss the election. No notice was provided to the membership regarding this meeting.

• ALJ Finding: The Petitioner established that the HOA violated the statute.

• ALJ Rationale: The ruling was based on “uncontroverted evidence” that the meeting occurred and that the board “did not provide any notice of the upcoming meeting and/or provide notice that the meeting would be closed because it involved legal advice from an attorney.”

IV. Final Order and Disposition

The final decision, issued on August 23, 2018, and upheld after a rehearing decision on December 26, 2018, ordered the following:

• Dismissal: The petition regarding Issue 1 (violation of Bylaw 2.4) was dismissed.

• Prevailing Party: The Petitioner, Tom Barrs, was deemed the prevailing party as to Issue 2 and Issue 3.

• Monetary Award: The Respondent, Desert Ranch HOA, was ordered to pay the Petitioner his filing fee of $1,000.00.

• Civil Penalty: The judge determined that “No Civil Penalty is found to be appropriate in this matter.”

• Finality: The decision after rehearing was binding on the parties, with any further appeal requiring judicial review in the superior court.

Study Guide – 18F-H1818035-REL-RHG

Study Guide:Barrs v. Desert Ranch HOA

This guide provides a detailed review of the administrative case Tom Barrs v. Desert Ranch HOA, based on the Administrative Law Judge Decisions issued on August 23, 2018, and December 26, 2018.

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Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, using only information provided in the case documents.

1. Who were the primary parties involved in this case, and what were their roles?

2. What were the initially announced results of the Desert Ranch HOA Board of Directors election on March 18, 2017?

3. What were the two primary procedural violations that the Desert Ranch HOA Board committed following the March 18, 2017 election?

4. What was the Petitioner’s central argument regarding the violation of Desert Ranch Bylaw 2.4?

5. On what grounds did the Administrative Law Judge (ALJ) dismiss the Petitioner’s claim regarding Bylaw 2.4?

6. Explain the violation related to Arizona Revised Statute (A.R.S.) § 33-1812(A)(7) that the ALJ found the Respondent had committed.

7. Describe the violation of A.R.S. § 33-1804 concerning open meetings.

8. What was the final order from the initial hearing on August 23, 2018?

9. What was the specific focus of the rehearing held on December 6, 2018?

10. What was the ultimate outcome of the rehearing, and what legal recourse was available to the parties afterward?

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Answer Key

1. The primary parties were Petitioner Tom Barrs, who filed the dispute, and Respondent Desert Ranch HOA. The HOA was represented by its President, Catherine Overby, and Vice President, Brian Schoeffler. The case was heard by Administrative Law Judge Tammy L. Eigenheer.

2. At the Annual Board Meeting on March 18, 2017, the ballots were counted and Catherine Overby and Jerome Klinger were announced as the winning candidates for the two vacant seats on the Board of Directors. No members present raised an objection before the meeting was adjourned.

3. The HOA Board committed two primary procedural violations. First, they destroyed the ballot envelopes at or around the time of the election, and second, certain Board members met with an attorney without providing notice to the association members that a meeting was being held or that it would be a closed session.

4. The Petitioner argued that candidate Brian Schoeffler’s challenge to the election was invalid because it was raised the day after the meeting adjourned. According to Bylaw 2.4, any “Member” who fails to object to an irregularity at the meeting waives their claim, and the Petitioner argued this rule should also apply to Board members.

5. The ALJ dismissed the claim because the investigation was initiated by Board member Patrick Rice, who expressed concerns immediately after the meeting, not by Mr. Schoeffler’s later email. The judge also determined that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific, non-interchangeable meanings, and the Petitioner failed to show that a Director was barred from raising concerns after a meeting.

6. The ALJ found that the Respondent violated A.R.S. § 33-1812(A)(7) based on uncontroverted evidence presented at the hearing. This statute requires that ballots, envelopes, and related election materials be retained for at least one year after an election, but the HOA discarded the ballot envelopes around the time of the election.

7. The Respondent violated A.R.S. § 33-1804 when certain Board members met with an attorney at Ms. Overby’s house on March 29, 2017. The HOA failed to provide any notice of this meeting to the members and did not announce that the meeting would be closed to discuss legal advice, as required by the statute.

8. In the initial order, the ALJ dismissed the petition as to Issue 1 (the Bylaw 2.4 violation) but found the Petitioner to be the prevailing party on Issues 2 and 3 (the statutory violations). The judge ordered the Respondent HOA to pay the Petitioner his filing fee of $1,000.00 but found that no civil penalty was appropriate.

9. The rehearing focused exclusively on the first issue from the initial hearing: whether the Respondent violated Bylaw 2.4 when it acted on objections to the election results after the Annual Meeting had adjourned. The Petitioner did not seek reconsideration of the lack of penalties for the other two violations.

10. The rehearing upheld the original decision, dismissing the petition as to Issue 1. The decision from the rehearing was final and binding, and any party wishing to appeal the order was required to seek judicial review in the superior court within thirty-five days.

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Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, drawing upon specific facts and legal arguments presented in the source documents.

1. Analyze the Administrative Law Judge’s interpretation of Desert Ranch Bylaw 2.4, specifically the distinction between a “Member” and a “Director.” Discuss the strength of the Petitioner’s counter-argument and why the judge’s reasoning ultimately prevailed.

2. Examine the series of actions taken by the Desert Ranch HOA Board of Directors following the March 18, 2017 election announcement. Evaluate whether their actions to investigate irregularities, consult an attorney, and hold a run-off election were ultimately justified, despite the procedural violations they committed.

3. Discuss the concept of “preponderance of the evidence” as the burden of proof in this case. For each of the three issues presented, explain how the Petitioner either met or failed to meet this standard, citing specific evidence mentioned in the decisions.

4. Based on the events described, from the initial election to the final administrative ruling, critique the effectiveness of the HOA’s internal governance and dispute resolution processes. What systemic failures are evident, and how did they lead to a formal administrative hearing?

5. Although the Petitioner was the “prevailing party” on two of the three issues, the remedy was limited to a refund of his filing fee, with no civil penalty imposed. Argue for or against the appropriateness of this remedy, considering the nature of the HOA’s violations and their impact on the integrity of the election process.

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Glossary of Key Terms

Term / Statute

Definition

Administrative Law Judge (ALJ)

The official who presides over the administrative hearing at the Office of Administrative Hearings and issues a decision based on evidence and law. In this case, Tammy L. Eigenheer.

A.R.S. § 33-1804

An Arizona Revised Statute requiring that all meetings of a homeowners’ association and its board of directors be open to all members. A meeting may only be closed for specific reasons, such as receiving legal advice, and the board must state the statutory reason for closing the meeting.

A.R.S. § 33-1812(A)(7)

An Arizona Revised Statute that mandates the retention of election materials, including ballots and envelopes, in either electronic or paper format for at least one year after the completion of an election for member inspection.

A.R.S. § 41-2198.01

An Arizona statute that permits an owner or a planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or statutes.

Burden of Proof

The obligation of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In this case, the Petitioner bore the burden of proof.

Desert Ranch Bylaw 2.4

A provision in the HOA’s bylaws stating, “Any Member who fails to object to any perceived or actual irregularity at the meeting… forever waives that claim.”

Homeowners Association (HOA) Dispute Process Petition

The formal document filed with the Arizona Department of Real Estate by a homeowner to initiate a legal proceeding against their HOA for alleged violations.

Petitioner

The party who files a petition initiating a legal action. In this case, Tom Barrs.

Preponderance of the evidence

The standard of proof in this administrative hearing. It is defined as evidence that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of the evidence.

Rehearing

A second hearing of a case to consider a decision that has already been made, typically granted if there are perceived errors of law, misconduct, or if the decision was not supported by the evidence.

Respondent

The party against whom a petition is filed. In this case, the Desert Ranch HOA.

Blog Post – 18F-H1818035-REL-RHG

A Homeowner Sued His HOA Over a Botched Election—Here Are 3 Lessons Every Board Should Learn

Friction between homeowners and their Homeowners Association (HOA) board is a common feature of community living, and nowhere is that friction more apparent than in disputes over elections and rule enforcement. But what happens when a board, trying to correct an error, makes the situation exponentially worse?

This article is a deep dive into the real administrative law case of Barrs v. Desert Ranch HOA, a seemingly straightforward dispute that reveals surprising and practical lessons for anyone living in or governing a planned community. It’s a story of a cascade of errors, where initial election confusion led to a panicked and procedurally flawed response, compounded by a pre-existing failure in record-keeping. As we’ll see, the outcome wasn’t what anyone expected, and the board’s biggest mistakes weren’t the ones they thought they were fighting.

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1. You Can Lose the Main Argument But Still Win the Case

The dispute began at the Desert Ranch HOA’s annual meeting, where election results were announced. The trouble started immediately after the meeting adjourned when a board Director, Patrick Rice, gathered the ballots and expressed concerns about irregularities. A day later, a losing candidate, Brian Schoeffler, echoed those concerns via email. Citing the Director’s objection, the board overturned the initial results, prompting homeowner Tom Barrs to file a petition arguing this was a violation of the HOA’s own rules.

Barrs’ case hinged on Bylaw 2.4, which stated that any “Member” must object to irregularities during the meeting itself, or else they waive their right to complain. Barrs argued that since no one objected before adjournment, the results should stand. However, the judge disagreed, pointing to two critical distinctions in the evidence. First, the investigation was triggered by the concerns of a “Director,” not the losing candidate’s later email. Second, a close reading of the bylaws showed that the terms “Member” and “Director” were used as distinct categories and were not interchangeable. Since the bylaw only restricted “Members,” it did not prevent a Director from raising concerns after the meeting. Barrs lost his primary argument.

Despite this, in a counter-intuitive twist, the judge declared Barrs the “prevailing party” in the overall case and ordered the HOA to repay his $1,000 filing fee. Why? Because while investigating the petitioner’s main claim, the judge found the board had committed other clear violations of state law while trying to “fix” the election. This outcome underscores a critical principle for all boards: procedural integrity is paramount. The HOA won the battle over its right to review the election but lost the war because of its flawed process.

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2. Your Records (or Lack Thereof) Will Be Your Downfall

One of the board’s most significant errors was a simple but critical failure of administrative duty: they destroyed election materials in direct violation of state law. The HOA was found to have violated A.R.S. § 33-1812(A)(7), which is unambiguous about an HOA’s responsibility.

According to A.R.S. § 33-1812(A)(7), “Ballots, envelopes and related materials…shall be retained…for at least one year after completion of the election.”

The legal decision states the evidence was “uncontroverted” that the HOA discarded the ballot envelopes around the time of the election. Because the HOA could not dispute this fact, it was an easy violation for the petitioner to prove.

This wasn’t just a minor administrative oversight; it was a catastrophic error. By destroying the envelopes, the board not only violated the law but also eliminated any possibility of independently verifying the vote count after their own director discovered irregularities. This single failure trapped them in a procedural corner of their own making. It made a definitive resolution of the election challenge impossible, leading to the messy and expensive situation of declaring a tie and holding a run-off, all of which could have been avoided if the primary evidence had been preserved as required by law.

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3. “Private” Board Business Can Be an Illegal Secret Meeting

In an attempt to resolve the election dispute correctly, the board took what it likely considered a responsible step: seeking legal advice. After the election was contested, certain board members met with an attorney at a board member’s house to figure out how to proceed. However, the way they did it constituted another clear violation of state law.

This private meeting violated Arizona’s open meeting law, A.R.S. § 33-1804. While the statute does allow a board to enter a closed session to receive legal advice, it has strict procedural requirements. The board must first provide notice of the meeting to all members and then, at that public meeting, officially vote to enter the closed session for that specific, legally permissible reason. The evidence was “uncontroverted” that the board failed to provide any notice of this meeting to the association members.

The board’s desire for confidential legal advice was understandable, but their method created an unforced legal error. The correct procedure—notifying members of a meeting and then voting to enter a closed session—protects the board by demonstrating procedural propriety. The shortcut they took exposed them to a clear-cut violation that was impossible to defend. For an HOA board, transparency is the default, and secrecy is a narrow, legally defined exception. The process of going private matters as much as the reason for doing so.

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Conclusion: It’s Not Just What You Do, It’s How You Do It

The Desert Ranch HOA board, in its attempt to correct a perceived election error, committed two clear statutory violations. In their haste, they held an illegal secret meeting and were hamstrung by their prior failure to properly retain election records—the very evidence needed for a clean resolution. These procedural missteps ultimately cost them the case.

The ultimate lesson from Barrs v. Desert Ranch HOA is that for any governing body, procedural correctness is just as important as substantive correctness. This case serves as a stark reminder that good intentions are no defense against procedural law. When a crisis hits, does your board have the discipline to follow procedure, or will the rush to find a solution lead you to commit unforced errors that are far worse than the original problem?

Case Participants

Petitioner Side

Tom Barrs (petitioner)
Appeared on his own behalf
Stephen Barrs (witness)
Testified for Petitioner

Respondent Side

Catherine Overby (board president, witness)
Desert Ranch HOA
Appeared on behalf of Respondent
Brian Schoeffler (board vice president, witness)
Desert Ranch HOA
Appeared on behalf of Respondent
Patrick Rice (board member)
Desert Ranch HOA
Board member who expressed concerns with election results

Neutral Parties

Tammy L. Eigenheer (ALJ)
OAH
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Other Participants

Jerome Klinger (board member)
Desert Ranch HOA
Director elected in disputed election

Tom Barrs vs Desert Ranch HOA

Posted on August 23, 2018 by [email protected]

Case Summary

Case ID	18F-H1818035-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2018-12-26
Administrative Law Judge	Tammy L. Eigenheer
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Tom Barrs	Counsel	—
Respondent	Desert Ranch Homeowners' Association	Counsel	—

Alleged Violations

Bylaw 2.4

Outcome Summary

Key Issues & Findings

Violation of Bylaw 2.4 (Election Objection Waiver)

Orders: The Petition was dismissed as to Issue 1.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA Dispute, Election Challenge, Bylaw Violation, Meeting Notice, Record Retention, Rehearing

Additional Citations:

A.R.S. § 33-1813
A.R.S. § 33-1811
A.R.S. § 33-1812
A.R.S. § 33-1804
Bylaw 3.3
Bylaw 2.4

Video Overview

Audio Overview

Decision Documents

18F-H1818035-REL Decision – 655766.pdf

Uploaded 2025-12-09T10:04:26 (113.2 KB)

18F-H1818035-REL Decision – 678304.pdf

Uploaded 2025-10-09T03:32:44 (117.5 KB)

18F-H1818035-REL Decision – 678305.pdf

Uploaded 2025-10-09T03:32:44 (38.8 KB)

Briefing Doc – 18F-H1818035-REL

Barrs v. Desert Ranch HOA: Case Briefing

Executive Summary

This briefing document outlines the legal dispute between Petitioner Tom Barrs and the Desert Ranch Homeowners’ Association (HOA) concerning the HOA’s March 18, 2017, Board of Directors election. The petitioner alleged that the HOA improperly overturned the initial election results, mishandled election materials, and held meetings in violation of state law and its own bylaws.

An initial ruling by an Administrative Law Judge found the HOA in violation of state statutes regarding the retention of election materials (A.R.S. § 33-1812(A)(7)) and open meeting laws (A.R.S. § 33-1804). However, the judge ruled against the petitioner on the central claim that the HOA violated Bylaw 2.4 by investigating the election after the annual meeting had concluded.

The petitioner requested and was granted a rehearing, which focused exclusively on the alleged violation of Bylaw 2.4. The final decision on rehearing, issued December 26, 2018, reaffirmed the initial ruling. The judge concluded that the investigation was properly initiated by a board member, not a general member, and that the bylaw restricting post-meeting objections did not apply to the Board of Directors itself. Consequently, the petition regarding the overturning of the election was dismissed.

Case Overview

This document details the findings of fact and conclusions of law in the administrative case No. 18F-H1818035-REL-RHG, heard in the Arizona Office of Administrative Hearings.

Case Detail

Information

Case Number

18F-H1818035-REL-RHG

Petitioner

Tom Barrs

Respondent

Desert Ranch Homeowners’ Association

Presiding Judge

Tammy L. Eigenheer, Administrative Law Judge

Initial Hearing

Not specified in document

Rehearing Date

December 6, 2018

Decision Date

December 26, 2018

Key Individuals:

• Tom Barrs: Petitioner.

• Catherine Overby: HOA President, appeared for Respondent.

• Brian Schoeffler: HOA Vice President, appeared for Respondent; candidate in the disputed election.

• Jerome Klinger: Candidate initially announced as a winner of the election.

• Patrick Rice: Board member at the time of the election.

Chronology of the 2017 Election Dispute

1. Pre-March 18, 2017: Absentee ballots are sent to HOA members listing Catherine Overby and Brian Schoeffler as candidates, with a space for a write-in.

2. March 18, 2017: At the Annual Meeting, ballots are submitted and counted. Catherine Overby and write-in candidate Jerome Klinger are announced as the winners. No members object before the meeting is adjourned. Immediately following, board member Patrick Rice gathers the ballots and expresses concerns about the results.

3. March 19, 2017: Brian Schoeffler sends an email to board members asking for a review and a decision on whether a “revote” is necessary.

4. March 20, 2017: Catherine Overby emails the HOA membership, stating the election has been “contested” and that the board must investigate. She also asserts that bylaws do not allow write-in candidates, meaning she and Schoeffler were the new directors based on the vote count.

5. March 29, 2017: Certain board members, including Overby and Rice, meet with an attorney at Overby’s house. They discover that duplicate and proxy ballots were improperly counted.

6. Post-March 29, 2017: The board determines the valid votes resulted in a tie between Schoeffler and Klinger. A run-off election is scheduled.

7. April 29, 2017: The run-off election is held. Brian Schoeffler is announced as the winner.

8. May 10, 2017: The Board of Directors holds an organizational meeting.

Procedural History and Allegations

Initial Petition and Hearing

• March 19, 2018: Tom Barrs files a single-issue HOA Dispute Petition with the Arizona Department of Real Estate, paying a $500 fee but including a four-page narrative alleging multiple violations.

• April 13, 2018: Barrs files an amended petition, adding an alleged violation of A.R.S. § 33-1812.

• July 30, 2018: Barrs pays to convert the petition to a multiple-issue dispute and submits a “Clarification of Three Issues alleged in Petition.”

The three core issues alleged by the petitioner were:

1. Improper Overturning of Election: The Board of Directors improperly removed Jerome Klinger by overturning the March 18, 2017 election results. The petitioner argued the challenge by the third candidate was barred by Bylaw 2.4, and the methods used violated recall protocols under A.R.S. § 33-1813 and Bylaw 3.3.

2. Improper Handling of Election Materials: The board violated A.R.S. § 33-1812 by disposing of election materials (ballot envelopes) required to be kept for one year and by selectively invalidating votes cast on invalid ballots.

3. Improperly Held Meetings: Meetings related to the 2017 election were held as closed sessions or without proper notice in violation of A.R.S. § 33-1804.

Initial Decision

Following the initial hearing, the Administrative Law Judge (ALJ) issued a decision with the following conclusions:

• Violation Found: The Respondent (HOA) violated A.R.S. § 33-1812(A)(7) by discarding the ballot envelopes around the time of the election.

• Violation Found: The Respondent violated A.R.S. § 33-1804 by holding meetings that were closed and/or without proper notice.

• No Violation Found: The Petitioner failed to prove that the Respondent violated Bylaw 2.4.

Rehearing and Final Order

• October 1, 2018: Barrs files a request for rehearing, citing misconduct, insufficient penalties, errors of law, and a decision not supported by evidence.

• November 2, 2018: The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

• December 6, 2018: At the rehearing, the petitioner states he is only seeking reconsideration of Issue 1 (the improper overturning of the election) and not the lack of penalties for Issues 2 and 3.

Judicial Analysis and Final Rulings

The final decision focused solely on whether the HOA’s actions violated its own bylaws regarding election challenges.

Key Bylaw and Legal Standard

• Desert Ranch Bylaw 2.4: The central bylaw in dispute states:

• Burden of Proof: The petitioner bore the burden of proving the violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Analysis of Issue 1: Violation of Bylaw 2.4

• Petitioner’s Argument: Mr. Barrs argued that because candidate Brian Schoeffler did not object to the election results before the March 18, 2017 meeting adjourned, Bylaw 2.4 barred the board from investigating his concerns raised the following day via email. The petitioner contended that board members are also “Members” and thus are bound by this rule.

• Evidence Presented: Testimony established that Patrick Rice, acting as a Board member, expressed concerns with the vote count immediately after the meeting adjourned. This, not Mr. Schoeffler’s subsequent email, initiated the board’s investigation. At the rehearing, the petitioner presented selected audio clips he had recorded to support his arguments but did not provide the entire recording.

• Conclusion of Law: The ALJ made a critical distinction between the terms used in the HOA’s bylaws.

◦ The terms “Member,” “Directors,” and “Board of Directors” were found to have specific, non-interchangeable meanings throughout the bylaws.

◦ Bylaw 2.4 applies specifically to a “Member.”

◦ The petitioner made no showing that a “Director” or the “Board of Directors” could not raise questions about the validity of election results after a meeting had adjourned.

◦ Since the investigation was initiated by a board member (Rice) and not exclusively by a member’s untimely objection (Schoeffler), the board’s actions did not violate Bylaw 2.4.

Final Order

Based on the analysis from the rehearing, the judge issued the following order:

IT IS ORDERED that the Petition be dismissed as to Issue 1.

This order, resulting from a rehearing, is legally binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.

Study Guide – 18F-H1818035-REL

Study Guide: Barrs v. Desert Ranch Homeowners’ Association (No. 18F-H1818035-REL-RHG)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Tom Barrs and Respondent Desert Ranch Homeowners’ Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.

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Short-Answer Quiz

Answer each of the following questions in 2-3 sentences based on the provided source documents.

1. Who were the primary parties involved in case No. 18F-H1818035-REL-RHG, and what were their roles?

2. What specific event on March 18, 2017, served as the catalyst for the entire legal dispute?

3. What were the initial, announced results of the election held at the March 18, 2017, Annual Meeting?

4. According to the Petitioner, how did the HOA Board violate Bylaw 2.4 following the election?

5. In the initial hearing, which two of the Petitioner’s allegations were found to be valid violations committed by the Respondent?

6. Why did the Commissioner of the Arizona Department of Real Estate grant the Petitioner’s request for a rehearing?

7. During the rehearing on December 6, 2018, what was the single issue that the Petitioner chose to focus on for reconsideration?

8. According to the Administrative Law Judge’s findings, what action initiated the Board’s investigation into the election results, separate from Brian Schoeffler’s email?

9. How did the Judge’s interpretation of the terms “Member” and “Director” in the bylaws defeat the Petitioner’s primary argument on rehearing?

10. What was the final order issued by the Administrative Law Judge regarding Issue 1 after the conclusion of the rehearing?

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Answer Key

1. The primary parties were Tom Barrs, who served as the Petitioner, and the Desert Ranch Homeowners’ Association, which was the Respondent. The Petitioner, Mr. Barrs, appeared on his own behalf, while the Respondent was represented by its President, Catherine Overby, and Vice President, Brian Schoeffler.

2. The dispute was triggered by the election for two vacant seats on the HOA Board of Directors held during the Annual Meeting on March 18, 2017. The subsequent actions by the Board to investigate and ultimately overturn the initial results of this election led the Petitioner to file a dispute.

3. The initially announced results of the March 18, 2017, election declared that Ms. Catherine Overby and Mr. Jerome Klinger were the winning candidates. No members present at the meeting raised an objection to these announced results before the meeting was adjourned.

4. The Petitioner argued that the Board violated Bylaw 2.4 by acting on an objection to the election results raised by Brian Schoeffler the day after the meeting. The bylaw states that any member who fails to object to an irregularity during a meeting “forever waives that claim,” and the Petitioner argued Mr. Schoeffler, as a member, had waived his right to object.

5. In the initial hearing, the Judge found that the Petitioner successfully established two violations by the Respondent. These were a violation of A.R.S. § 33-1812(A)(7) for discarding ballot envelopes and a violation of A.R.S. § 33-1804 for holding closed meetings without proper notice.

6. The Commissioner granted the rehearing “for the reasons outlined in the Petitioner’s Rehearing Request.” The Petitioner’s request cited multiple grounds, including misconduct by the prevailing party, errors of law, and that the initial findings of fact were not supported by the evidence or were contrary to law.

7. At the rehearing, the Petitioner stated he was only seeking reconsideration of the initial decision as it related to Issue 1. This issue was the allegation that the Board improperly overturned the election results in violation of Bylaw 2.4.

8. The Judge found that the Board’s investigation was initiated by Mr. Patrick Rice, a Board member at the time, who expressed his concerns with the vote “immediately after the Annual Meeting adjourned.” This occurred prior to and independent of the email sent by Brian Schoeffler the following day.

9. The Judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific and non-interchangeable meanings. Because the Petitioner made no showing that a “Director” (like Mr. Rice) could not raise questions after a meeting, the restriction on “Members” in Bylaw 2.4 did not apply to the Board’s actions.

10. The final order stated that the Petition was to be dismissed as to Issue 1. The Judge concluded that the Petitioner failed to sustain his burden of proof to establish that the Respondent had violated Bylaw 2.4.

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Essay Questions

1. Analyze the timeline of events from the Annual Meeting on March 18, 2017, to the run-off election on April 29, 2017. Discuss the key actions taken by the HOA Board—including the meeting with an attorney and the discovery of invalid ballots—and explain how these actions led to the legal dispute.

2. Detail the three distinct issues the Petitioner alleged in his “Clarification of Three Issues alleged in Petition.” Based on the outcome of the initial hearing, evaluate the success of these claims and explain why the Petitioner prevailed on some issues but not others.

3. The Petitioner’s case on rehearing hinged on the interpretation of Bylaw 2.4. Construct the Petitioner’s argument regarding this bylaw and then fully explain the Administrative Law Judge’s legal reasoning for ultimately rejecting it, focusing on the distinction between “Members” and “Directors.”

4. Discuss the concept of “burden of proof” as it is defined and applied in this case. Explain the “preponderance of the evidence” standard and analyze how the Petitioner’s failure to meet this standard led to the dismissal of Issue 1 on rehearing.

5. Examine the procedural history of the case, from the initial single-issue petition to the final binding order after rehearing. What were the key procedural steps, such as amending the petition and filing for a rehearing, and how did these steps shape the final scope and outcome of the case?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Tammy L. Eigenheer.

A.R.S.

Abbreviation for Arizona Revised Statutes, the collection of laws for the State of Arizona. The Petitioner alleged violations of several statutes, including A.R.S. § 33-1813, § 33-1811, § 33-1812, and § 33-1804.

Bylaw 2.4

The specific bylaw of the Desert Ranch HOA that was the central focus of the rehearing. It states, “Any Member who fails to object to any perceived or actual irregularity at the meeting… forever waives that claim.”

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish the alleged violations.

Department

The Arizona Department of Real Estate, the state agency with which the Homeowners Association Dispute Process Petition was filed.

Director

An elected member of the HOA’s Board of Directors. The ALJ’s decision distinguished this role from that of a general “Member.”

Homeowners Association (HOA)

The governing organization for the planned community of Desert Ranch, responsible for enforcing community documents and statutes.

Member

A homeowner within the planned community. The ALJ’s decision emphasized that in the bylaws, this term has a specific meaning that is not interchangeable with “Director.”

Petitioner

The party who initiates a legal action or petition. In this case, the Petitioner was Tom Barrs.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Rehearing

A second hearing of a case, granted in this instance by the Commissioner of the Arizona Department of Real Estate, to reconsider the initial decision based on alleged errors.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Desert Ranch Homeowners’ Association.

Blog Post – 18F-H1818035-REL

5 Shocking Lessons from an HOA Election Gone Wrong

Introduction: When “The Rules” Aren’t What You Think

Homeowners’ Associations (HOAs) run on rules. From lawn maintenance to paint colors, the governing documents are the ultimate authority. But what happens when the rules themselves become the center of a dispute? Imagine this scenario: your HOA holds its annual board election. The results are announced, the winners are declared, and everyone goes home. Then, the next day, the board decides to overturn the result.

This isn’t a hypothetical. It’s the core of a real-life legal case that reveals surprising truths about community governance, the power of a single word, and what can happen when an election goes off the rails.

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1. An Election Isn’t Over Until the Board Says It’s Over

The dispute began at the Desert Ranch Homeowners’ Association Annual Meeting on March 18, 2017. The ballots for two open board seats were counted, and Catherine Overby and Jerome Klinger were announced as the winning candidates. Crucially, no members present raised an objection before the meeting adjourned. By all appearances, the election was over.

But it wasn’t. Immediately after the meeting, a board member, Mr. Rice, gathered the ballots and expressed his concerns with the election results. The next day, the losing candidate, Brian Schoeffler, sent an email asking the board to “review the situation” and consider a “revote.” The board then formally announced that the election had been contested and that it was obligated to investigate.

After consulting an attorney, the board discovered several ballot irregularities, including duplicate ballots and an improperly counted proxy ballot. This new tally resulted in a tie between Mr. Schoeffler and Mr. Klinger. The board then forced a run-off election, which Mr. Schoeffler ultimately won. While the losing candidate’s email drew attention, the true turning point had already occurred moments after the meeting ended, when a board member himself questioned the results—an act that would prove legally decisive.

2. A Single Word in the Bylaws Can Change Everything

The homeowner who filed the legal petition, Tom Barrs, built his case on a seemingly straightforward rule in the HOA’s bylaws. He argued that any challenge to the election was invalid because it wasn’t raised before the Annual Meeting adjourned. The bylaw in question, Section 2.4, reads:

Any Member who fails to object to any perceived or actual irregularity at the meeting (whether procedural, parliamentary, substantive or technical) forever waives that claim.

The petitioner’s argument was simple: the challenge was raised after the meeting by a “Member,” so the claim was waived. The case seemed open-and-shut.

However, the Administrative Law Judge made a critical distinction that decided the case. The judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific meanings and were not interchangeable. While a Member had to object during the meeting, the judge found no rule preventing a Director from raising questions later.

Because a board member, Mr. Rice, had expressed concerns immediately following the meeting, the board’s subsequent investigation was deemed permissible. This razor-thin interpretation of a single word highlights the immense power that definitions and precise language hold in governing documents.

3. The Board Broke the Law, But Still Won on the Main Issue

In a surprising twist, the judge determined that the HOA had, in fact, violated Arizona state law on two separate counts during the election controversy. The petitioner successfully proved that the board failed to follow established statutes.

The two violations established in the initial hearing were:

• Improper Destruction of Ballots: The HOA violated A.R.S. § 33-1812(A)(7) when it destroyed all of the ballot envelopes around the time of the election. This act made a true, verifiable recount impossible, directly undermining the integrity of the very election the board was claiming to investigate.

• Improper Meetings: The HOA violated A.R.S. § 33-1804 by holding closed meetings without providing proper notice to the members, particularly a meeting at the home of a board member, Ms. Overby, where the decision to hold a run-off was made. By making these critical decisions behind closed doors, the board created an appearance of secrecy that fueled the dispute and eroded member trust.

Despite proving these clear legal violations, the petitioner still lost on his primary complaint—overturning the run-off and reinstating the original election results. This outcome serves as a stark example of a pyrrhic victory. You can successfully prove that an organization broke the rules without achieving your ultimate goal in the dispute.

4. An Investigation Can Uncover a Cascade of Deeper Problems

The board’s decision to contest its own election results was controversial, but the subsequent investigation brought a cascade of other procedural failures to light. The initial challenge acted like a pulled thread that unraveled a series of previously unknown mistakes.

During the board’s meeting with its attorney, it was discovered that “duplicate ballots and a proxy ballot that were improperly counted” had skewed the original vote. This alone was enough to call the first result into question.

Furthermore, the board itself asserted that its own bylaws “did not allow for a write-in candidate.” This was a significant admission, as one of the original winners, Jerome Klinger, had been a write-in. If true, his victory would have been invalid from the start, regardless of any other challenges. The board’s investigation, initiated to resolve one perceived error, ended up exposing its own systemic incompetence—from improperly counting ballots to being unaware of its own rules regarding write-in candidates. The effort to fix the election proved the election was fundamentally broken from the start.

5. An HOA Board Can Investigate Itself

The petitioner’s case rested on the idea that board members are also “Members” of the association and are therefore bound by the same rules. If a regular member had to object during the meeting, a director should have to as well.

The judge rejected this argument, implicitly affirming the board’s higher-level fiduciary duty to ensure a fair and legal election. The final decision made it clear that the bylaws used “Member” and “Director” with distinct meanings and responsibilities. The bylaw requiring members to object during the meeting was the mechanism for an individual’s challenge; it did not override the board’s inherent duty to govern properly.

The key takeaway from the judge’s decision was unambiguous: The petitioner “made no showing that a Director could not raise questions as to the validity of the election results after the meeting adjourned.” This legally affirms a board’s power to investigate its own processes, a responsibility separate from the rules that govern challenges from the general membership.

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Conclusion: Have You Read Your Bylaws Lately?

This case serves as a powerful reminder that the dense, legalistic language of HOA governing documents is not just boilerplate. These documents have immense real-world power, dictating the outcomes of contentious disputes and shaping the governance of a community. The intricate details and specific wording can mean the difference between a final result and one that is just the beginning of a long and costly fight.

This entire, year-long legal battle hinged on the definition of a single word. When was the last time you read the fine print governing your own community?

Case Participants

Petitioner Side

Tom Barrs (petitioner)
Appeared on his own behalf,.
Stephen Barrs (witness)
Testified for Petitioner,.

Respondent Side

Catherine Overby (board member/president)
Desert Ranch HOA
Appeared on behalf of Respondent,; Board President,; testified at hearing,.
Brian Schoeffler (board member/vice president)
Desert Ranch HOA
Appeared on behalf of Respondent,; Board Vice President,; testified at hearing,.
Patrick Rice (board member)
Desert Ranch HOA
Board member who expressed concerns immediately after the meeting,,,; involved in meeting with attorney,.

Neutral Parties

Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner (ADRE))
Arizona Department of Real Estate
Issued Order Granting Rehearing; recipient of decision copy,.
LDettorre (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.
DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.
ncano (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.

Other Participants

Jerome Klinger (board director)
Desert Ranch HOA
Initially announced as a winning candidate for director,; later removed after contest; involved in run-off,.
Paula Barrs (listed resident)
Listed with Tom Barrs on mailing address.

Thomas J. Van Dan Elzen vs. Carter Ranch Homeowners Association

Posted on June 25, 2018 by [email protected]

Case Summary

Case ID	18F-H1818042-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-06-25
Administrative Law Judge	Diane Mihalsky
Outcome	total
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Thomas J. Van Dan Elzen	Counsel	—
Respondent	Carter Ranch Homeowners Association	Counsel	Chad M. Gallacher, Esq.

Alleged Violations

A.R.S. § 33-1813

Outcome Summary

The ALJ granted the petitioner's request, finding that the HOA violated A.R.S. § 33-1813 by allowing the president to call a special meeting for board member recall without the required petition signed by homeowners. The HOA was ordered to reinstate the two removed board members and refund the petitioner's filing fee.

Key Issues & Findings

Removal of board member; special meeting

Petitioner alleged the HOA violated A.R.S. § 33-1813 when the president called a special meeting to recall three recently elected Board members, arguing that the statute requires a petition signed by homeowners. Respondent argued that A.R.S. § 33-1804 procedures could also be used. The ALJ ruled that A.R.S. § 33-1813, as the specific statute regarding removal, requires a petition.

Orders: Petitioner’s petition is granted. Respondent shall reinstate Board members Steve Brownell and Trish Brownell and reimburse the $500.00 single-issue filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1813
A.R.S. § 33-1804

Analytics Highlights

Topics: HOA, Board Removal, Recall Election, Statutory Interpretation, Petition Requirements

Additional Citations:

A.R.S. § 33-1813
A.R.S. § 33-1804

Video Overview

Audio Overview

Decision Documents

18F-H1818042-REL Decision – 642530.pdf

Uploaded 2026-01-23T17:24:07 (142.9 KB)

Briefing Doc – 18F-H1818042-REL

Briefing Document: Van Dan Elzen v. Carter Ranch Homeowners Association (Case No. 18F-H1818042-REL)

Executive Summary

This document synthesizes the findings and decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), heard by the Arizona Office of Administrative Hearings. The central dispute concerned the legality of a special meeting called by the HOA Board President to recall three recently elected board members. The petitioner argued this action violated Arizona Revised Statute (A.R.S.) § 33-1813, which requires such a recall to be initiated by a petition from homeowners. The HOA contended that the president had the authority to call the meeting under the broader powers granted in A.R.S. § 33-1804.

The Administrative Law Judge concluded that when a specific statute and a general statute conflict, the specific statute controls. A.R.S. § 33-1813 specifically governs the removal of board members and mandates a homeowner petition process. Therefore, the president’s unilateral call for a recall election was improper. The judge granted the petitioner’s request, ordering the HOA to reinstate the two board members who were removed and to reimburse the petitioner’s $500.00 filing fee.

Background and Procedural History

The case involves a dispute within the Carter Ranch development, a 253-lot community in Coolidge, Arizona.

• Petitioner: Thomas J. Van Dan Elzen, a homeowner and member of the Carter Ranch HOA.

• Respondent: Carter Ranch Homeowners Association.

• Petition: On or about April 5, 2018, Van Dan Elzen filed a petition with the Arizona Department of Real Estate. He alleged the HOA violated A.R.S. § 33-1813 when its president, Lance Van Horne, called a special meeting to recall three newly elected board members.

• Hearing: The matter was referred to the Office of Administrative Hearings for an evidentiary hearing, which took place on June 20, 2018, before Administrative Law Judge Diane Mihalsky.

The Contested Elections

The dispute originated from a contentious board election process marked by accusations of misconduct, culminating in a recall election that was later found to be procedurally invalid.

March 20, 2018 Board Election

An initial annual meeting on February 20, 2018, failed to achieve the required quorum of 26 ballots. A second meeting was scheduled for March 20, 2018, for which eight candidates ran for five open board positions.

• Allegations of Misconduct: Prior to the meeting, Community Manager Mary Chaira received reports that three candidates—Roxanne Gould, Steve Brownell, and Trish Brownell—were going door-to-door “disseminating allegedly false information about Respondent’s finances, and harvesting ballots.”

• Meeting Conduct: At the March 20 meeting, a quorum of 47 homeowners was present. Board President Lance Van Horne addressed the allegations of false information. However, homeowners who may have filled out ballots based on this information were not permitted to withdraw them. The meeting was described by Ms. Chaira as “unruly and stressful.”

The election results for the top six candidates were as follows:

Candidate

Number of Votes

Outcome

Roxanne Gould

Elected

Steve Brownell

Elected

Trish Brownell

Elected

Lance Van Horne

Elected

Steve F.

Tie for 5th position

April 24, 2018 Recall Election

Believing the March 20 election outcome was “compromised” by the alleged dissemination of false information and ballot harvesting, President Van Horne called a special meeting for April 24, 2018, to hold a recall election for the three newly elected members: Roxanne Gould, Steve Brownell, and Trish Brownell.

A quorum of 52 homeowners returned ballots for the recall. The results were:

Board Member

Votes for Recall

Votes against Recall

Outcome

Roxanne Gould

Remained on Board

Steve Brownell

Removed from Board

Trish Brownell

Removed from Board

Following the recall, other members were elected to fill the vacant board positions.

Central Legal Issue: Statutory Interpretation

The case presented a pure legal question of statutory interpretation, as the facts of what occurred were not in dispute. The core issue was which Arizona statute governs the process for recalling an HOA board member.

Competing Legal Positions

• Petitioner’s Argument: The recall election was invalid because it violated A.R.S. § 33-1813. This statute, titled “Removal of board member; special meeting,” explicitly states that a recall process is initiated upon the board’s receipt of a petition signed by a specified number or percentage of homeowners. The president’s unilateral action did not meet this requirement.

• Respondent’s Argument: The HOA argued that A.R.S. § 33-1813 was not the exclusive procedure. It claimed that the president could also call such a meeting under the authority of A.R.S. § 33-1804, a more general statute governing meetings, which states that “Special meetings of the members’ association may be called by the president.”

Statutory Analysis by the Court

The Administrative Law Judge highlighted the direct conflict between the two statutes on the subject of board member removal.

Feature

A.R.S. § 33-1813 (Specific Statute)

A.R.S. § 33-1804(B) (General Statute)

Meeting Initiation

By homeowner petition only.

By the president, a board majority, or homeowner petition.

Petition Requirement

For HOAs ≤ 1,000 members: petition signed by at least 100 members or 25% of votes, whichever is less.

Petition signed by at least 25% of votes (or lower if specified in bylaws).

Meeting Notice

Within 30 days after receipt of the petition.

Between 10 and 50 days in advance of the meeting.

The judge noted that A.R.S. § 33-1813 specifically overrides the petition requirements of A.R.S. § 33-1804(B), demonstrating legislative intent for it to be the controlling authority on this specific issue.

The Judge’s Legal Conclusion

The decision rested on the well-established legal principle that a specific statute governs over a general one when they are inconsistent. Citing case law, the judge reasoned:

“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”

Applying this canon of statutory construction, the judge concluded that A.R.S. § 33-1813 is the controlling authority for the removal of an HOA board member. Therefore, a valid recall process must be initiated by a homeowner petition as outlined in that statute. The president lacked the authority to call the April 24, 2018 recall meeting on his own initiative.

Final Order and Implications

Based on the legal conclusion that the Respondent violated A.R.S. § 33-1813, the Administrative Law Judge issued a recommended order with the following mandates:

1. Petition Granted: The petitioner’s petition is granted.

2. Board Member Reinstatement: The Carter Ranch HOA is required to reinstate Board members Steve Brownell and Trish Brownell.

3. Fee Reimbursement: The HOA must reimburse the petitioner, Thomas J. Van Dan Elzen, for his $500.00 single-issue filing fee.

This order is considered binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide – 18F-H1818042-REL

Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association

This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818042-REL, Thomas J. Van Dan Elzen v. Carter Ranch Homeowners Association. It covers the key facts, legal arguments, and final ruling of the case.

Short-Answer Quiz

Answer the following questions in 2-3 sentences each, based on the information provided in the case document.

1. Who were the primary parties involved in this case, and what were their respective roles?

2. What specific action by the Carter Ranch Homeowners Association (HOA) prompted the Petitioner to file a complaint with the Arizona Department of Real Estate?

3. What were the allegations made against candidates Roxanne Gould, Steve Brownell, and Trish Brownell prior to the March 20, 2018 election?

4. State the vote counts for the top three candidates who were elected to the Board of Directors on March 20, 2018.

5. What was the reason given by the Board’s president, Lance Van Horne, for calling a special recall election for April 24, 2018?

6. What were the specific outcomes for each of the three board members facing recall in the April 24, 2018 election?

7. Which two Arizona Revised Statutes (A.R.S.) were at the center of the legal dispute, and what general topics do they cover?

8. What was the HOA’s primary legal argument for why its president was permitted to call the special recall meeting?

9. What legal principle of statutory construction did the Administrative Law Judge use to resolve the conflict between the two statutes?

10. What two things was the Respondent, Carter Ranch HOA, ordered to do in the final ruling?

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Quiz Answer Key

1. The primary parties were Thomas J. Van Dan Elzen, the Petitioner, who is a homeowner and member of the association, and the Carter Ranch Homeowners Association, the Respondent. The Petitioner initiated the legal action against the HOA.

2. The Petitioner filed the complaint because the HOA’s president called a special meeting to hold a vote on recalling three recently elected members of the Board of Directors. The Petitioner alleged this action violated A.R.S. § 33-1813, which requires such a recall to be initiated by a petition signed by homeowners.

3. Prior to the March election, reports were made that Roxanne Gould, Steve Brownell, and Trish Brownell were going door-to-door disseminating allegedly false information about the HOA’s finances. They were also accused of “harvesting ballots” from members based on this information.

4. The top three candidates elected on March 20, 2018, were Roxanne Gould with 30 votes, Steve Brownell with 26 votes, and Trish Brownell with 25 votes.

5. Board president Lance Van Horne called the special recall election because he felt the election’s outcome was compromised. He believed the dissemination of allegedly false information and the harvesting of votes by the Brownells and Ms. Gould had tainted the results.

6. In the April 24 recall election, Roxanne Gould survived the recall with 27 votes against to 25 for. Steve Brownell and Trish Brownell were both removed from the board, with 27 votes for their recall and 25 against.

7. The statutes at the center of the dispute were A.R.S. § 33-1813 and A.R.S. § 33-1804. A.R.S. § 33-1813 specifically covers the “Removal of board member; special meeting,” while A.R.S. § 33-1804 is a more general statute concerning “Open meetings.”

8. The HOA argued that A.R.S. § 33-1813 was not the only procedure for calling a recall meeting. It contended that the procedures in the more general statute, A.R.S. § 33-1804, which allows the president to call a special meeting, could also be used.

9. The judge applied the well-established common law principle that when a general statute and a specific statute on the same subject are in conflict, the specific statute controls. Therefore, the specific procedures for recall in A.R.S. § 33-1813 took precedence over the general meeting rules in A.R.S. § 33-1804.

10. The Carter Ranch HOA was ordered to reinstate the removed board members, Steve Brownell and Trish Brownell. The HOA was also ordered to reimburse the Petitioner for his $500.00 single-issue filing fee.

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Essay Questions

1. Trace the complete timeline of events described in the decision, beginning with the failed meeting on February 20, 2018, and concluding with the judge’s final order. For each key date, describe the event that occurred, the people involved, and the outcome of the event.

2. Analyze the conflicting interpretations of Arizona state law presented by the Petitioner and the Respondent. Explain which specific clauses of A.R.S. § 33-1813 and A.R.S. § 33-1804 each party relied upon to justify their position regarding the legality of the April 24, 2018 recall meeting.

3. The decision states that the case presents a “pure legal issue of statutory interpretation.” Explain what this means and how it affects the burden of proof. Describe in detail the canons of statutory construction cited by the judge and how she applied them to rule in favor of the Petitioner.

4. Discuss the role of the allegations of misconduct (disseminating false information and harvesting ballots) against the newly elected board members. How did these allegations act as a catalyst for the recall election, and what was their ultimate relevance (or lack thereof) to the final legal conclusion reached by the Administrative Law Judge?

5. Based on the judge’s “Conclusions of Law,” explain the definitive legal procedure for an HOA in Arizona, with 1,000 or fewer members, to initiate the removal of a board member. Detail the petition requirements, signature thresholds, and meeting notice timelines as established by the controlling statute, A.R.S. § 33-1813.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent official who presides over administrative hearings, hears evidence, and makes legal decisions, in this case, Diane Mihalsky from the Office of Administrative Hearings.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Board of Directors

The governing body of the homeowners’ association, elected by the members.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish the violation.

De Novo Review

A type of review where a court or judge decides the issues without reference to any legal conclusion or assumption made by the previous party in the case. This was applied because the issue was a pure matter of statutory interpretation.

Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.

Evidentiary Standard

The level of proof required to convince the trier of fact. In this case, the standard was a “preponderance of the evidence.”

Homeowners’ Association (HOA)

The organization that governs the Carter Ranch development, of which all lot owners are members.

Office of Administrative Hearings

An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted.

Petitioner

The party who initiates a legal action by filing a petition. In this case, it was homeowner Thomas J. Van Dan Elzen.

Preponderance of the Evidence

The standard of proof in which the trier of fact is convinced that a contention is more probably true than not.

Quorum

The minimum number of members of an association that must be present at a meeting for the proceedings of that meeting to be valid. In the March 20 election, the quorum was 47 homeowners.

Recall Election

A special vote held to determine whether to remove an elected official (in this case, board members) from office before the end of their term.

Respondent

The party against whom a petition is filed. In this case, it was the Carter Ranch Homeowners Association.

Special Meeting

A meeting of an association’s members called for a specific purpose outside of the regularly scheduled annual meetings. The April 24 recall vote was a special meeting.

Statutory Construction

The process of interpreting and applying legislation. The judge used common-law canons of statutory construction to resolve the conflict between the two A.R.S. sections.

Blog Post – 18F-H1818042-REL

Majority Rules? Not in This HOA: How One Homeowner Overturned a Recall Election on a Technicality

The Unruly World of Neighborhood Politics

In the world of Homeowners Associations, a majority vote is typically the final word. But for the Carter Ranch HOA, a 27-to-25 recall vote meant to oust two board members became the start of a legal battle, not the end. This case reveals a crucial lesson in community governance: when a board president’s unilateral action clashes with statutory procedure, the will of the majority can be rendered completely irrelevant.

A Democratic Vote Can Be Completely Ignored

On April 24, 2018, the Carter Ranch HOA held a special recall election targeting three recently elected board members: Roxanne Gould, Steve Brownell, and Trish Brownell. A quorum of 52 homeowners participated, and the vote was a split decision. Roxanne Gould survived the recall attempt, with 27 votes against her removal and 25 for it. However, Steve and Trish Brownell were successfully voted off the board by a clear majority of 27 to 25.

The twist came later, in a judge’s chambers. Despite the democratic outcome, an Administrative Law Judge ordered the HOA to reinstate the Brownells. This counter-intuitive decision wasn’t the result of voter fraud or a miscount. The entire election was nullified because of a critical procedural error made by the HOA president before a single ballot was cast.

An HOA President Can’t Unilaterally Oust Board Members

The conflict began after a heated board election on March 20, 2018. The board president at the time, Lance Van Horne, felt the election’s outcome was “compromised.” He believed three newly elected members had won their seats by disseminating “allegedly false information” and “harvesting of votes.”

In response, Mr. Van Horne took decisive action. Believing he was correcting a wrong, he personally called for a special meeting to hold a recall election. This unilateral action became the sole basis for the legal challenge that followed. While the president’s concerns about election integrity were the catalyst for the drama, the court’s subsequent decision would demonstrate that his motives were entirely irrelevant. The only thing that mattered was the procedure he followed—or in this case, failed to follow.

The “Specific Beats General” Rule Is King

The HOA’s legal defense rested on a general statute, A.R.S. § 33-1804, which grants an association’s president the power to call special meetings for various purposes. They argued this general power included the authority to call a recall meeting.

However, the homeowner who challenged the recall pointed to a different, more specific law. A.R.S. § 33-1813 is a statute written exclusively for the purpose of removing board members. This specific law dictates that a recall process can only be initiated upon receipt of a petition signed by a required number of homeowners. The president cannot simply decide to do it alone.

The judge’s decision hinged on a foundational principle of legal interpretation. As cited in the final order:

“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”

Because the HOA president initiated the recall without first receiving the required petition from the homeowners, he failed to follow the specific procedure mandated by law. As a result, the entire recall election was declared invalid from the start.

One Homeowner Can Successfully Challenge an Entire HOA

This entire case was set in motion not by a group of disgruntled residents, but by a single individual. Homeowner Thomas J. Van Dan Elzen filed a “single-issue petition” with the state, challenging the validity of the president’s action. His understanding of the specific rules governing board member removal proved to be the key that unraveled the HOA’s actions.

The final court order was a complete victory for the petitioner:

• His petition was granted.

• The Carter Ranch HOA was ordered to reinstate the two removed board members, Steve and Trish Brownell.

• The HOA was also ordered to reimburse the petitioner for his $500.00 filing fee.

This outcome serves as an empowering example of how a single member, armed with knowledge of the governing documents and statutes, can hold an association’s leadership accountable and ensure that proper procedures are followed.

Conclusion: Rules, Not Rulers

The Carter Ranch case is a powerful illustration that in community governance, established process is not a technicality—it is the bedrock of legitimacy. The board’s failure to adhere to the specific statute for recalls (A.R.S. § 33-1813) created a fatal procedural flaw that no amount of good intention or majority support could cure. This serves as a stark reminder for all HOA boards: power is derived from the meticulous application of rules, not the perceived authority of rulers. Ignoring this principle doesn’t just invalidate an action; it exposes the association to legal challenges, financial penalties, and a loss of credibility with the community it governs. Do you know the specific rules that govern your own community?

Case Participants

Petitioner Side

Thomas J. Van Dan Elzen (petitioner)
Appeared on his own behalf

Respondent Side

Chad M. Gallacher (attorney)
Maxwell & Morgan, P.C.
Represented Respondent
Mary Chaira (Community Manager)
Witness for Respondent
Lance Van Horne (Board President)
Called the special recall election which led to the petition,,

Neutral Parties

Diane Mihalsky (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Received decision
Felicia Del Sol (staff)
Transmitted decision

Other Participants

Roxanne Gould (board member)
Elected board member; subject of recall attempt,,
Steve Brownell (board member)
Elected board member; removed by recall, reinstated by recommended order,,,
Trish Brownell (board member)
Elected board member; removed by recall, reinstated by recommended order,,,
Steve F. (candidate)
Candidate in board election
Dave (candidate)
Candidate in board election

Thomas J. Van Dan Elzen vs. Carter Ranch Homeowners Association

Posted on June 25, 2018 by [email protected]

Case Summary

Case ID	18F-H1818042-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-06-25
Administrative Law Judge	Diane Mihalsky
Outcome	total
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Thomas J. Van Dan Elzen	Counsel	—
Respondent	Carter Ranch Homeowners Association	Counsel	Chad M. Gallacher, Esq.

Alleged Violations

A.R.S. § 33-1813

Outcome Summary

Key Issues & Findings

Removal of board member; special meeting

Orders: Petitioner’s petition is granted. Respondent shall reinstate Board members Steve Brownell and Trish Brownell and reimburse the $500.00 single-issue filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1813
A.R.S. § 33-1804

Analytics Highlights

Topics: HOA, Board Removal, Recall Election, Statutory Interpretation, Petition Requirements

Additional Citations:

A.R.S. § 33-1813
A.R.S. § 33-1804

Video Overview

Audio Overview

Decision Documents

18F-H1818042-REL Decision – 642530.pdf

Uploaded 2025-10-09T03:32:50 (142.9 KB)